net.wars: Bannedwidth

Comcast doesn't have to lower the cap progressively for customers to feel the crunch; the amount of data everyone shifts around grows inexorably year by year. Just as the 640K Bill Gates denies he ever said was enough for anybody is today barely an email, soon 250Gb will be peanuts. Comcast's move will more likely pull the market away from all-you-can-eat to arguably logical banded charging basis.

We should keep that in mind as the European Parliament goes to debate the telecoms package on Tuesday, with a first reading plenary vote scheduled for the Strasbourg session on September 22-25.

Many of the consumer provisions make sense, such as demanding that all users have free access to the EU-wide and national emergency numbers, that there be at least one directory enquiries service, and that there be "adequate" geographical coverage of public payphones. Those surrounded by yapping mobile phones everywhere they go may wonder why we still need payphones, but the day your battery dies, your phone gets lost, stolen, or broken, or you land in a foreign country and discover that for some reason your phone doesn't work, you'll be grateful, trust me.

The other consumer provision everyone has to like is the one that requires greater transparency about pricing.

What's unusual about the Comcast announcement is that it's open and straightforward; in the UK so far, both ISPs and "all-you-can-eat" music download services have a history of being coy about exactly what level of use is enough to get you throttled or banned. In credit cards, American Express's "no preset spending limit" is valuable precisely because it gives the consumer greater flexibility than the credit limits imposed by Visa and Mastercard; in online services the flexibility is all on the side of the supplier. Most people would be willing to stay on the south side of a bandwidth cap if only they knew what it was. One must surmise that service providers don't like to disclose the cap because they think knowing what it is will encourage light users to consume more, upsetting the usage models their business plans are based on.

The more contentious areas are, of course, those that relate to copyright infringement. Navigating through the haze of proposed amendments and opinions doesn't really establish exactly what's likely to happen. But in recent months there have been discussions of everything from notice-and-takedown rules to three-strikes-and-you're-offline. Many of these defy the basic principles on which European and American justice is supposed to rest: due process and proportionate punishment.

Take, for example, the idea of tossing someone offline and putting them on a blacklist so they can't get an account with another ISP. That fails both principles: either an unrelated rightsholder of the original ISP or both would be acting as a kangaroo court, and being thrown offline would not only disconnect the user from illegal online activities but in many cases make it impossible for that person's whole household to do homework, pay bills, and interact with both government and social circles.

That punishment would be wholly disproportioniate even if you could guarantee there would be no mistakes and all illegal activities would be punished equally. But in fact no one can guarantee that. An ISP cannot scan traffic and automatically identify copyright infringement; and with millions of people engaging in P2P file-sharing (seemingly the target of most of this legislation) any spotting of illegal activity has to be automated. In addition, over time, as legal downloads (Joss Whedon's dr horrible and his sing-a-long blog managed 2.2 million downloads from iTunes in the first week besides crashing its streaming server) outstrip illegal ones, simply being a heavy user won't indicate anything about whether the user's activity is legal or not.

Part of the difficulty is finding the correct analogy. Is the crime of someone who downloads a torrent of The Big Bang Theory and leaves the downloaded copy seeding afterwards the same as that of someone who sets up a factory and puts out millions of counterfeit DVD copies? Is downloading a copy of the series the same as stealing the DVDs from a shop? I would say no: counterfeit DVDs unarguably cost the industry sales in a way that downloading does not, or not necessarily. Similarly, stealing a DVD from a shop has a clearly identifiable victim (the shop itself) in a way that downloading a copy does not. But in both those cases the penalties are generally applied by courts operating under democratically decided procedures. That is clearly not the case when ISPs act on complaints by rightsholders with no penalties imposed upon them for false accusations. A more appropriate punishment would be a fine, and even that should be limited to cases of clear damage, such as the unauthorized release of material that has yet to be commercially launched.

For all these reasons, ISPs should be wary of signing onto the rightsholders' bandwagon when their concern is user demand for bandwidth. We would, I imagine, see very different responses from them if, as I think ought to happen, anti-trust law were invoked to force the separation of content owners from bandwidth providers.